Federal judge again blocks Texas fetal remains rules

Austin-based U.S. District Judge Sam Sparks said that the health department regulations would remain suspended until further notice and that attorneys will now have 30 days to work out scheduling logistics before a full trial date is set.

Sparks had previously suggested in court that the proposed rules had public health benefit. Opponents argue they could unduly burden women seeking abortions.

The rules seek to ban hospitals and clinics from disposing of fetal remains from abortions or miscarriages as biological medical waste, usually meaning they are incinerated and placed in sanitary landfills.

They were set to take effect in December, but Sparks issued restraining orders after national advocacy groups sued. He then heard two days of testimony before issuing Friday’s injunction. Federal courts previously blocked similar measures in Louisiana and Indiana.

Texas first proposed the rules in July, days after the U.S. Supreme Court voided much of the state’s larger anti-abortion law, which was approved in 2013 and would have left Texas with 10 abortion clinics, down from more than 40 in 2012.

The state health department said the rules sought to protect “human dignity.” But while hearing evidence earlier this month, Sparks said they were “100 percent political” and could supersede established Texas law that allows scattering of ashes on any private property with owner’s consent, which could include landfills.

Lawyers for Texas Attorney General Ken Paxton’s office countered that that law applied only to human remains and not specifically to fetal tissue, which prompted Sparks to exclaim: “It’s the official doctrine of the state that fetal tissue is not human remains. So you’re bringing dignity to non-human remains?”

The groups suing say cremation and burial would cost more and force women to cover the additional expenses. Exactly how much more isn’t clear, though some estimates have put the figure at an extra $400 per fetus — perhaps doubling the costs of an abortion.

Texas argues that those estimates assume individualized burial or cremation being required for each fetus when the rules would allow groups of remains to be collected for mass burial or cremation, lowering the cost considerably.

Even as the legal fight rages, top Republicans in the state Legislature have filed bills to codify similar fetal remains rules into formal Texas law.

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